Landlords have two mechanisms under which they can evict tenants. One comes under s21 of the Housing Act 1988 (recovery of possession on expiry of an assured shorthold tenancy) and where the tenant has committed no breach of the tenancy agreement.
This is known as ‘accelerated possession’ but it began to be perceived as unfair to tenants after the 2008 recession. It was seen that instead of dealing with tenant complaints, in particular those of repairs, many landlords preferred to evict as they did not have to provide proof that they had committed any wrongdoing but this left the new tenant with exactly the same problems! So, when the former Liberal Democrat MP Sara Teather raised concerns in Parliament the term ‘retaliatory evictions’ was coined.
So, whilst the Deregulation Act 2015 introduced two different regimes for the serving of s21 Notices, (which can be found here) the most significant areas of help for tenants under the 2015 Act was that of s33 (preventing retaliatory evictions). This means that if a tenant makes a written report to the landlord about a repair needing to be carried out, the landlord needs to write to the tenant within 14 days stating a) what is going to be done and b) a time-frame for doing the work.
Failure to do so means that the tenant can report the situation to the local authority Environmental Health. If they serve a notice as a result of their inspection it will be one of the following:
- A notice served under s11 of the Housing Act 2004 (improvement notices relating to Category 1 hazards: duty of authority to serve notice);
- A notice served under s12 of the same Act (improvement notices relating to Category 2 hazards: power of authority to serve notice);
- A notice served under s40(7) of the same Act (emergency remedial action).
This will then prevent the landlord from serving a s21 Notice for 6 months and it will only be able to be served again from the date of the service of the notice.
If the notice is served then suspended, an earlier section 21 notice will not be invalidated. Hazard notices are designed to address health and safety issues and there are 29 areas which the Act covers specifically under the Housing Health and Safety Ratings System which can be read here.
This six month restriction does not apply if the hazard notice has been revoked, quashed or reversed under the provisions of the 2004 Act.
Under s34 (further exemptions to s33) the restrictions on serving a section 21 notice in s33 do not apply where:
- The tenant has caused the hazard;
- The property is ‘genuinely’ for sale on the open market and not for sale to a related or associated person (for a full definition refer to ss34(3) – (5) of the Act and s178 of the Housing Act 1996 (meaning of associated person);
- The landlord is a private registered social housing provider (otherwise known as a housing association);
- A mortgagee requires possession to exercise a power of sale.
Both sections came into effect for tenancies created after 1st October 2015 (and apply only in England) but from October 2018 this will apply to all AST’s regardless of when they were created.
Under this Act landlords are also prevented from serving s21 Notices if, in addition to any failure in dealing with repairs, it has not dealt with requirements regarding the issuing of Energy Performance Certificates, the requirement relating to gas safety and breaching the new need to give information to tenants about the rights and responsibilities of both parties.
Essentially this has strengthened the right of tenants to challenge a s21 eviction, something which they have always been able to do because the eviction papers include a defense form. This does however have to be entered within two weeks of the tenant receiving the papers. After the court receives the defence papers it arranges a closed court hearing before a judge where the tenant has the opportunity to put forward their case, stating why they believe the eviction to be invalid. The landlord must either attend the hearing or appoint an agent to attend on their behalf. A witness statement may be accepted by the Court if the landlord or agent are unable to attend the hearing .The judge will listen and refer to the relevant law.
On the other hand, if no defense papers are submitted then the court can use the accelerated possession procedure to make a decision without a hearing. If the paperwork submitted by the landlord is correct, then the possession order will be issued and a date set for the tenant to leave.
SPECIFIC EVICTION GROUNDS
The other method of eviction comes under s8 of the Housing Act 1988 which provides 20 specific grounds for eviction where the tenant has breached the terms of the tenancy agreement. The most common reason for landlords seeking possession is for rent arrears which is provided for by the following three grounds: ground 8 which is mandatory and grounds 10 and 11 which are discretionary. More information on these and other grounds can be found here.
Even when a tenant stays beyond the eviction date they are not classed as squatters and nor are they committing an illegal act by remaining. In fact local councils will always tell tenants who have been served a s21 notice to stay put. This is because a) councils must be satisfied the landlord is determined to follow the eviction through as per their own Homeless Guide or b) the landlord at least gets an order for possession that gives the tenant a few more days to vacate the property. The harsher reality is that they are even more likely to do nothing until the bailiffs arrive and the tenant(s) end up on their (former) front doorsteps with their possessions and children in tow. This is something which I have seen happen on my block and there aren’t many sadder sights in a civilised country. What this also means is that within the definition of Part VII of the Housing Act 1996 (homelessness and threatened homelessness) if they move out before the bailiffs arrive, unless they have somewhere to go, they are deemed to be ‘voluntarily homeless’ and will lose their right to be re-housed.